Kozielec v. Mack Mfg. Corp.

• Citation: 102 A.2d 404,29 N.J.Super. 272
• Parties: KOZIELEC v. MACK MFG. CORP.
• Decision Date: 31 December 1953
• Court: New Jersey County Court

Page 272

29 N.J.Super. 272

102 A.2d 404

KOZIELEC v. MACK MFG. CORP.

Middlesex County Court

Law Division, New Jersey.

Dec. 31, 1953.

Russell Fleming, New Brunswick, for petitioner-appellee (Harold Sklarew, New Brunswick, attorney).

William G. Dermody, Newark, for respondent-appellant (Gockeler, Cortese & Abell, Newark, attorneys).

MORRIS, J.C.C.

This is a workmen's compensation case in which there was an award by the Deputy Director of the Division of Workmen's Compensation of the Department of Labor. It is here on appeal for trial De novo upon the entire record.

The precise question here involved does not appear to have heretofore been decided. It is, may a surviving wife of an injured employee, either individually as a dependent, or as administratrix of his estate, file an original claim petition for permanent disability under the Workmen's Compensation Act, R.S. 34:15--1 et seq., N.J.S.A., where the injured workman, during his lifetime, failed to file such petition and where his death concededly resulted from a cause wholly unrelated to the industrial accident for which compensation for such permanent disability is sought?

It appears from the record and I find as a fact that Albert Kozielec met with an accidental injury arising out of and in the course of his employment with the Mack Manufacturing Corporation on October 10, 1950, when a bin fell upon him. He was taken immediately to St. Peter's General Hospital in New Brunswick where he was treated by Dr. Norman Rosenberg. The authority of this physician was never questioned by either the respondent or its insurance carrier. On the contrary the insurance carrier paid his bill for treating the injured workman in the amount of $268 as well as the hospital bill in the sum of $304. The carrier also paid to the injured workman compensation for temporary disability from October 11, 1950 to April 11, 1951, a period of 27 weeks, at the compensation rate of $25 per week.

It is admitted that the said Albert Kozielec died July 1, 1951, from causes unrelated to the said industrial accident.

Four grounds have been advanced and ably argued by the respondent-appellant for a reversal of the award.

It is first argued that the Division of Workmen's Compensation was without jurisdiction either to entertain the said petition or to make an award thereon. The respondent-appellant contends that because the statute does not contain any express provision for the filing of such a claim petition by a surviving wife, either individually as a dependent, or as administratrix of the estate of a deceased employee, such a right cannot be implied and, in fact, does not exist. Such a contention runs Contra to the decisions of our courts. For while it is conceded that the statute contains no such express provision, the question remains whether such a right is conferred by fair implication and intendment incident to and included in the authority expressly granted for the enforcement of the statute. 'The Compensation Bureau,' held the Court of Errors and Appeals in P. Bronstein & Co. Inc. v. Hoffman, 117 N.J.L. 500, 189 A. 121, 125 (1937), 'is invested only with such authority as is expressly conferred, or such as is by fair implication and intendment incident to and included in the authority expressly granted for the enforcement of the statute.'

The inquiry, therefore, is whether such a right is conferred by fair implication and intendment incident to and included in the authority expressly granted for the enforcement of the statute.

An examination of the statute and decisions disclose the following:

R.S. 34:15--41, N.J.S.A., provides: 'In case of personal injury or death all claims for compensation on account thereof shall be forever barred unless a petition is filed * * *.' It will be noted that the statute is silent as to who must file the petition.

R.S. 34:15--45, N.J.S.A., contains provisions for a guardian to compromise a claim but it does not state who is to file petition. If it means that the petition should be filed by the guardian, it is an instance where some person other than the injured employee has the right to file a claim petition in a representative capacity.

R.S. 34:15--48, N.J.S.A., deals with the right to receive compensation where the injured employee is mentally, legally or physically unable to receive it, but the statute is silent as to who can file a petition for such a disabled person.

It is common knowledge that since the automobile came in use, medical case records disclose instances wherein the injured have remained in a state of coma for periods varying up to several years. For such common law cases our law had provision for the appointment of a guardian. But if such person were injured in an accident, compensable under our Workmen's Compensation Act, if the respondent's contention that only the injured workman himself could file a claim petition for permanent compensation be sound, the injured workman would be completely without remedy.

Among instances where the courts have spelled out rights and duties as implied under the act, the following may be mentioned. Nowhere in the statute is there any provision that the injured workman must prove his case by the greater weight of the evidence. Yet our courts have repeatedly so held. Gilbert v. Gilbert Machine Works, Inc., 122 N.J.L. 533, 6 A.2d 213 (Sup.Ct.1939); Ducci v. Kapo Dyeing & Print Works, 23 A.2d 786, 20 N.J.Misc. 47 (N.J. Dept. of Labor 1942).

As hereafter noted, the only reference to the payment of interest in the act is found in R.S. 34:15--28, N.J.S.A., which provides that the Bureau, at the time of making the award, may, in its discretion, allow interest on each weekly payment withheld. But in Simon v. N. J. Asphalt & Paving Co., 123 N.J.L. 232, 8 A.2d 256 (Sup.Ct.1939), the court held that the petitioner was entitled to interest on the award from the date of its docketing, and on the counsel fee as well, the court saying: 'In our state the practice is to permit the collection of interest on a judgment,' citing Erie Railway Co. v. Ackerson, 33 N.J.L. 33.

In construing the Act, our courts have frequently gone beyond the wording of the statute itself and applied the same rules and principles as are applied to common law action. For example, our courts in numerous workmen's compensation cases, including Belyus v. Wilkinson Gaddis & Co., 115 N.J.L. 43, 178 A. 181, 186 (Sup.Ct.1935), affirmed 116 N.J.L. 92, 182 A. 873 (E. & A.1935), applied the rule that 'The test is probability rather than certainty,' citing as authority, Jackson v. Delaware, Lackawanna & Western Railroad Co., 111 N.J.L. 487, 170 A. 22, which was not a workmen's compensation case but an action at common law.

None of our own cases cited by the respondent-appellant changes this concept. Cases from other jurisdictions are cited by respondent-appellant, but these construe specific statutes of other states. There is no Uniform Workmen's Compensation Act where the decisions of one state construing a particular section can, with any authority, be cited by the courts of another state.

The issue in the case of Hagerman v. Lewis Lumber Co., 24 N.J.Super. 120, 93 A.2d 632 (App.Div.1952), cited by respondent-appellant was different than the instant case. That holding amounts to no more than was decided in Lusczy v. Seaboard By-Products Co., 101 N.J.L. 170, 127 A. 212, 213 (E. & A.1925). There the question was whether a dependent's claim petition filed by the widow of an injured employee had been filed within time. The Court of Errors and Appeals held that it had not been filed within time. Counsel for the widow argued that a different time prevailed between a dependent's claim petition and a petition for increased disability and contended that the defendant's claim petition was in effect, a claim petition for increased disability. The court held it was not. Referring to the contention of the widow that the payment of 16 weeks' temporary compensation to her husband during his lifetime was an 'agreement' to pay compensation, Mr. Justice Katzenbach, speaking for the court, said:

'The agreement to pay compensation was an agreement to which only Lusczy and the By-Products Company were parties. The widow who is the petitioner in this case, was not a party to the agreement. Any rights which she may have had for compensation for the death of her husband are rights which flow directly from the statute. They are not rights to which she succeeds as the representative of her husband. The petitioner in this case was not in our opinion a party to the agreement, and so is not in a position which entitles her to have it reviewed. * * * Death is not an increase in incapacity within the meaning of this provision of the statute.'

In the case Sub judice, it is not argued that petitioner is entitled to benefits under the statute as a dependent. For as was said by Mr. Justice Oliphant, speaking for the Supreme Court in Eckert v. New Jersey State Highway Department, 1 N.J. 474, 64 A.2d 221, 224 (1949):

'The rights of dependents to compensation are independent and separate rights flowing to them from the act itself. They are not rights to which they succeed as the representatives of the husband and father. Lusczy v. Seaboard By-Products Co., 101 N.J.L. 170, 127 A. 212 (E. & A.1925); Laird v. State of Vermont Hwy. Dept., 112 Vt. 67, 20 A.2d 555.'

What the petitioner here argues is that she as the personal representative of her husband's estate, is entitled to money which he, as an injured employee, was entitled to but which had not been paid to him at the time of his death.

In King v. Western Electric Co., 122 N.J.L. 442--449, 5 A.2d 490, 494 (Sup.Ct.1939), affirmed by the Court of Errors and Appeals in 1937 (124 N.J.L. 129, 11 A.2d 32), Mr. Justice Heher, speaking for the court, said:

'And now, it (the employer) invokes the provision of the statute limiting the time for the enforcement of the right to compensation not only as regards such...